Certificate of Public Convenience and Necessity for Cable Television. granted by the County Board Arlington County, Virginia to

Transcription

1 Certificate of Public Convenience and Necessity for Cable Television granted by the County Board Arlington County, Virginia to COMCAST OF POTOMAC, LLC Approved by the Arlington County Board on December, 2016

2 Table of Contents ARTICLE PAGE 1. DEFINITIONS GRANT OF AUTHORITY; LIMITS AND RESERVATIONS PROVISION OF CABLE SERVICE SYSTEM OPERATION SYSTEM FACILITIES PEG AND I-NET SERVICES FRANCHISE FEES CUSTOMER SERVICE REPORTS AND RECORDS INSURANCE AND INDEMNIFICATION TRANSFER OF THE CERTIFICATE RENEWAL OF FRANCHISE ENFORCEMENT AND TERMINATION OF FRANCHISE MISCELLANEOUS PROVISIONS EXHIBIT A - PUBLIC BUILDINGS TO BE PROVIDED FREE CABLE SERVICE EXHIBIT B - PEG CHANNELS EXHIBIT C INSTITUTIONAL NETWORK SITES EXHIBIT D IRU AGREEMENT EXHIBIT E INSTITUTIONAL NETWORK TERMS OF USE EXHIBIT F - CUSTOMER SERVICE STANDARDS EXHIBIT G - FORM OF CONFIDENTIALITY AGREEMENT i

3 1. DEFINITIONS For the purpose of this Certificate, the definitions appearing in the Cable Ordinance are applicable herein unless otherwise provided in this Certificate. In addition to the foregoing, the following terms, phrases, words, abbreviations, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future tense; words in the plural number included the singular number; words in the singular number include the plural; and, the masculine gender includes the feminine gender. Unless otherwise expressly stated, words not defined herein or in the Cable Ordinance shall be given the meaning set forth in Title 47 of the United States Code, as amended, and, if not defined therein, the words shall be given their common and ordinary meaning. Any request or agreement by the County shall be a request or agreement made by action of the County Board, or those designated to act for it in this respect. 1.1 Access Channel: Any channel on the Cable System set aside by the Certificate Holder for public, educational, or governmental use. 1.2 Administrator: The County Manager of Arlington County or his duly appointed designee(s). The Administrator shall receive any reports or notices due to the Administrator or County and shall be the individual responsible for granting permission or exercising non-legislative authority assigned to the Administrator or County under this Certificate and Chapter 41.2 of the County Code, unless otherwise designated or unless otherwise required by law to be granted or exercised by the Board. 1.3 Affiliate: Any Person who, directly or indirectly, owns or controls, is owned or controlled by, or is under common ownership or control with, the Certificate Holder. 1.4 Basic Service: Any service tier that includes the retransmission of local television broadcast signals as well as Access Channels required by this Certificate. 1.5 Cable Ordinance: The County Cable Television Ordinance, Chapter 41.2 of the Code of the County of Arlington, Virginia. 1.6 Cable Service Cable Services, or Service: Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. 522(6), meaning (A) the oneway transmission to subscribers of (i) video programming, or (ii) other programming service, and (B) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. 1.7 Cable System or System: Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. 522(7), meaning Franchisee s facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Service which includes video programming and which is provided to multiple Subscribers within the Service Area. 1.8 CAC: The Community Access Corporation approved by the Board to manage, program and operate any Public Access Channels set aside by the Certificate Holder.

4 1.9 Certificate Holder: Comcast of Potomac, LLC and its lawful and permitted successors, assigns, and transferees Channel: Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. 522(4) Communications Act: The Communications Act of 1934, as amended Control: The ability to exercise de facto or de jure control over day-to-day policies and operations or the management of corporate affairs Educational Access Channel: Any channel on the Cable System set aside by the Certificate Holder for noncommercial educational use FCC: The United States Federal Communications Commission, or successor governmental entity thereto Force Majeure: An event or events reasonably beyond the ability of the Certificate Holder to control. This includes, but is not limited to, acts of God, incidences of terrorism, war or riots, labor strikes or civil disturbances, floods, earthquakes, fire, explosions, epidemics, hurricanes, tornadoes, and governmental actions and restrictions not reasonably foreseeable by the Certificate Holder Franchise Area: The entire existing territorial limits of the County and such additional areas as may be included in the territorial limits of the County during the term of this Certificate Government Access Channel: Any channel on the Cable System set aside by a franchisee for noncommercial government use Gross Revenue: Any and all revenues, including cash, credits, property or other consideration of any kind or nature, which is derived directly or indirectly by the Certificate Holder from the operation of the Cable System to provide Cable Service in the Service Area. Gross Revenues include, by way of illustration and not limitation, monthly fees charged to Subscribers for any basic, optional, premium, per-channel, pay-per-view service, or other Cable Service, installation, disconnection, reconnection, and change-in-service fees; Leased Access Channel fees; late fees and administrative fees; fees, payments or other consideration received from programmers for carriage of programming on the System and accounted for as revenue under generally accepted accounting principles ( GAAP ); revenues from rentals or sales of Converters or other equipment; studio rental and production equipment rental; and, advertising revenue as set forth at sub-section below. The Certificate Holder shall maintain its books in accordance with GAAP. Gross revenue shall not include the following: To the extent consistent with GAAP, actual bad debts written off by the Certificate Holder in the normal course of business, provided, however, that bad debt recoveries shall be included in Gross Revenue during the period collected; 2

5 Any tax of general applicability imposed upon the Certificate Holder or upon Subscribers by the Commonwealth of Virginia, the County, the federal government, or any other governmental entity and required to be collected by the Certificate Holder and remitted to the taxing entity (including, but not limited to, sales/use tax, gross receipts tax, excise tax, utility users tax, public service tax, communication taxes and non-cable franchise fees, but not including the franchise fee provided for in this Certificate); Revenues received by any Affiliate or other Person in exchange for supplying goods or services used by the Certificate Holder to provide Cable Service over the Cable System; parties; Refunds, rebates or discounts made to Subscribers or other third Any revenues classified, in whole or in part, as Non-Cable Services revenue under federal or state law including, without limitation, revenue received from Telecommunications Services; revenue received from Information Services, including, without limitation, Internet Access service, electronic mail service, electronic bulletin board service, or similar online computer services; charges made to the public for commercial or cable television that is used for two-way communication; and any other revenues attributed by the Certificate Holder to Non-Cable Services in accordance with FCC or the Virginia State Corporation Commission rules, regulations, standards or orders; Any revenue of the Certificate Holder or any other Person which is received directly from the sale of merchandise through any Cable Service distributed over the Cable System, notwithstanding that portion of such revenue which represents or can be attributed to a Subscriber fee or a payment for the use of the Cable System for the sale of such merchandise, which portion shall be included in Gross Revenue; The sale of Cable Services on the Cable System for resale in which the purchaser is required to collect cable franchise fees from purchaser s customer; The provision of Cable Services to customers, which are exempt, as required or allowed by the County, including, without limitation, the provision of Cable Services to public institutions as required or permitted herein; Any foregone revenue which the Certificate Holder chooses not to receive in exchange for its provision of free or reduced cost cable or other communications services to any Person, including without limitation, employees of the Certificate Holder and public institutions or other institutions designated in the Certificate; provided, however, that such foregone revenue which Franchisee chooses not to receive in exchange for trades, barters, services or other items of value shall be included in Gross Revenue; Sales of capital assets or sales of surplus equipment; Program launch fees; 3

6 Directory or Internet advertising revenue including, but not limited to, yellow page, white page, banner advertisement and electronic publishing; and, Any fees or charges collected from Subscribers or other third parties for PEG and I-Net Grant payments Information Services: Shall be defined herein as it is defined under Section 3 of the Communications Act, 47 U.S.C. 153(20) Internet Access: Dial-up or broadband access service that enables Subscribers to access the Internet Non-Cable Services: Any service that is not a Cable Service that is provided over the Cable System Normal Business Hours: The hours from 8:00 a.m. to 8:00 p.m., Monday through Friday, and 12:00 p.m. to 6:00 p.m. on Saturday Normal Operating Conditions: Those service conditions which are within the control of the Certificate Holder. Conditions that are deemed to be within the control of the Certificate Holder include, but are not limited to, special promotions, pay-per-view events, rate increases, regular or reasonably anticipatable peak or seasonal demand periods, and maintenance or upgrade of the Cable System. Those conditions that are deemed not to be within the control of the Certificate Holder include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions PEG: Public, educational, and governmental Person: An individual, partnership, association, joint stock company, joint venture, domestic or foreign corporation, stock or non-stock corporation, limited liability company, professional limited liability company, trust, governmental entity, or organization of any kind, or any lawful successor thereto or transferee thereof. Such term does not include the County Public Access Channel: Any channel on the Cable System set aside by the Certificate Holder for noncommercial use by the general public, including groups and individuals, and which is available for such use on a non-discriminatory basis Public Rights-of-Way: The surface, the air space above the surface, and the area below the surface of any public street, highway, lane, path, alley, sidewalk, avenue, boulevard, drive, concourse, bridge, tunnel, park, parkway, waterway, dock, bulkhead, wharf, pier, easement, or similar property or waters within the County in which the County now or hereafter holds any property interest, including, but not limited to, any riparian right, which consistent with the purposes for which it was created, obtained or dedicated, may be used for the purpose of installing, operating and maintaining a cable system. No reference herein to a public right-of-way shall be deemed to be a representation or guarantee by the County that its interest or other right to control the use of such property is sufficient to permit use of the property for the purpose of installing, operating and maintaining a cable system. The Certificate Holder shall be deemed to gain only those rights to use the property as are properly in the County, in its sole determination, and as the 4

7 County may have the right and power to give. Public Rights-of-Way do not include the airwaves above a right-of-way, to the extent used for the transmission of cellular or other non-wire communications or broadcast services. channels Service Interruption: The loss of picture or sound on one or more cable 1.29 Subscriber: Any Person who legally receives Cable Service delivered over the Cable System Telecommunication Services: Shall be defined herein as it is defined under Section 3 of the Communications Act, 47 U.S.C. 153(46) Title II: Title II of the Communications Act Title VI: Title VI of the Communications Act Transfer: Any transaction in which: an ownership or other interest in the Certificate Holder or its Cable System is transferred, directly or indirectly, from one Person or group of Persons to another Person or group of Persons, so that control of the Certificate Holder is transferred; or the rights or obligations held by the Certificate Holder under the Certificate are transferred or assigned to another Person or group of Persons Video Programming: Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. 522(20). 2. GRANT OF AUTHORITY; LIMITS AND RESERVATIONS 2.1 Grant of Authority: Subject to the terms and conditions of this Agreement and the Cable Ordinance, the County hereby grants the Certificate Holder the right to own, construct, operate and maintain a Cable System along the Public Rights-of-Way within the Franchise Area for the purpose of providing Cable Service. This Certificate shall grant no authority for the Certificate Holder to use the Public Rights-of-Way for any purposes other than the provision of Cable Service. The grant of this Certificate does not relieve the Certificate Holder of the obligations to obtain any licenses, permits, or other authority as may be required by the County Code, as it may be amended, for the privilege of operating a business within the County or for performing work on County property or within the Public Rights-of-Way. No privilege or power of eminent domain is bestowed by this grant; nor is such a privilege or power bestowed by this Agreement. This Certificate does not confer any rights other than as expressly provided herein or as mandated by federal, State or local law. 5

8 2.2 Effective Date: This Certificate shall become effective on the date it is approved by the Board in accordance with applicable law (the Effective Date ). 2.3 Term: The term of this Certificate shall be five (5) years from the Effective Date unless the Certificate is earlier revoked or terminated as provided herein. 2.4 Grant Not Exclusive: The Certificate and the right it grants to use and occupy the Public Rights-of-Way to provide Cable Services shall not be exclusive, and the County reserves the right to grant other Certificates for similar uses or for other uses of the Public Rightsof-Way, or any portions thereof, to any Person, or to make any such use themselves, at any time during the term of this Certificate. Any such rights which are granted shall not reduce or detract from the authority granted under this Certificate. 2.5 Notwithstanding any other provision of this Certificate or any other provision of law, if any Video Service Provider ( VSP ) enters into any agreement with the County to provide video services to subscribers in the County, Certificate Holder may propose modifications to this Certificate so that the material terms of the Certificate are substantially the same as the new VSP agreement. Material terms shall include those addressing PEG channels, PEG funding, the calculation and payment of franchise fees, customer service obligations, buildout obligations, complimentary municipal services, and I-Net services. The Certificate Holder and the County shall negotiate diligently and in good faith to reach agreement on amendments to address the Certificate Holder s concerns within ninety (90) days after the Certificate Holder submits a written request to the County. If the parties cannot reach agreement on such a modification to the Certificate, then the parties agree to submit the matter to mediation, provided, however, that all of the existing terms and conditions of this Certificate shall remain in effect, without alteration, during the pendency of the mediation. The term Video Service Provider or VSP shall mean any entity using the public rights-of-way to provide multiple video programming services to subscribers, for a fee, regardless of the transmission method, facilities, or technology used. 2.6 Certificate Subject to Other Laws: Except as expressly provided herein, this Certificate is subject to and shall be governed by all applicable provisions of federal, and state law Both parties acknowledge that they voluntarily stand by the features and commitments contained in the Certificate. Should the Commonwealth of Virginia, any agency or department thereof, the FCC or any other agency of the Federal Government require the Certificate Holder to perform or refrain from performing any act, the performance or nonperformance of which is inconsistent with any of the provisions of the Certificate, the Certificate Holder shall so notify the Board and the Board shall, if it determines that a material provision herein is affected, have the right to propose amendments to the Certificate. The Certificate Holder and the County shall negotiate diligently and in good faith to reach agreement on amendments to address the inconsistency within ninety (90) days after the County proposes any such amendments. If the parties cannot reach agreement on such a modification to the Certificate, then the parties agree to submit the matter to mediation. All of the existing terms and conditions of this Certificate shall remain in effect, without alteration, during the pendency of the mediation, 6

9 provided that the Board shall not require the Certificate Holder to do or refrain from doing any act inconsistent with any mandatory requirement imposed upon the Certificate Holder by such federal or State entity, agency, or department. For purposes of this Section 2.6.2, a material provision shall be one that obligates the Certificate Holder to make financial payments to the County, or that imposes significant costs on the Certificate Holder solely for the benefit of the County, the Arlington Public Schools, or the CAC. 2.7 No Waiver: The failure of the County on one or more occasions to exercise a right or to require compliance or performance under this Certificate, the Cable Ordinance or any other applicable law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance by the County, nor to excuse the Certificate Holder from complying or performing, unless such right or such compliance or performance has been specifically waived in writing The failure of the Certificate Holder on one or more occasions to exercise a right under this Certificate or applicable law, or to require performance under this Franchise, shall not be deemed to constitute a waiver of such right or of performance of this Agreement, nor shall it excuse the County from performance, unless such right or performance has been specifically waived in writing Waiver of a breach of this Certificate, or any provision hereof, shall not be a waiver of any other breach, whether similar to or different from that waived. Neither the granting of the Certificate, nor any provision herein, nor any action by the County or the Board hereunder shall constitute a waiver of or a bar to the exercise of any governmental right or power of the County or the Board, including, without limitation, the right of eminent domain. 2.8 Construction of Certificate: The provisions of this Certificate shall be liberally construed to effectuate their objectives. In the event of a conflict between the Cable Ordinance and this Certificate, the Cable Ordinance shall prevail subject to Section 2.6, provided, however, that as provided in the Cable Ordinance and as specifically stated elsewhere herein, the provisions of this Certificate may vary from the provisions of the Cable Ordinance Nothing herein shall be construed to limit the scope or applicability of Section 625 of the Communications Act, 47 U.S.C Police Powers: Nothing in the Franchise shall be construed to prohibit the lawful exercise of the County s police powers. The parties recognize that the police powers are subject to constitutional limitations and judicial determination. If the lawful exercise of the County s police power results in any material alteration of the terms and conditions of this Certificate, then the parties shall meet and discuss in good faith whether to modify this Certificate to the mutual satisfaction of both parties to ameliorate the negative effects on the Certificate of the material alteration. If the parties cannot reach agreement on such a modification to the Certificate, then the parties agree to submit the matter to mediation, provided, however, that all of the existing 7

10 terms and conditions of this Certificate shall remain in effect, without alteration, during the pendency of the mediation Effect of Acceptance: By accepting and signing this Certificate, the Certificate Holder: accepts and agrees to comply with each provision of this Certificate and any related agreements; Certificate; and, acknowledges and accepts the County s legal right to grant the agrees that the Certificate was granted pursuant to processes and procedures consistent with and which complied with all applicable law, and that the Certificate Holder will not raise any claim to the contrary, or allege in any action, suit, claim, or proceeding by the Certificate Holder against the County that any provision, condition or term of this Certificate at the time of acceptance and ratification of the Certificate was unlawful, unreasonable, arbitrary or capricious, or that at the time of acceptance or ratification of the Certificate any such provision, condition, or term was void or that the County had no power or authority to make or enforce any such provision, condition or term of this Certificate agrees that it will not oppose intervention by the County in any proceeding affecting the County s rights under this Certificate No Tax Exemption: Nothing contained in this Certificate shall be construed to provide the Certificate Holder with an exemption, exclusion, deferral, offset or other relief from any tax, levy, or assessment which is now or which may be hereafter authorized by law No Exemption from Rent: This Certificate authorizes only the use of Public Rights-of-Way for the operation of a Cable System. Therefore, the grant of this Certificate and the payment of franchise fees hereunder shall not exempt the Certificate Holder from the obligation to pay compensation or fees for the use of County property, both real and personal, other than the Public Rights-of-Way, or that the Certificate Holder desires to occupy for purposes other than the provision of Cable Service in the County; provided, however, that such compensation or fees are lawfully required by County ordinance, regulation, or policy Other Permits: This Certificate authorizes only the use of Public Rightsof-Way for the operation of the Cable System, and does not take the place of any other certificate, license, permit or approval which might be required of the Certificate Holder by law. Prior to commencing any construction authorized by this Certificate or undertaking any other actions requiring County approval, the Certificate Holder shall obtain and hereby agrees to fully comply with all applicable permit and license requirements Equal Employment Opportunity: The Certificate Holder shall not refuse to employ, discharge from employment, or discriminate against any Person in compensation or in terms, conditions, privileges of employment because of race, color, religion, national origin, sex, sexual orientation, 8

11 age, disability or marital status. The Certificate Holder shall comply with all federal, State and local laws and regulations governing equal employment opportunities, as the same may be amended from time to time The Certificate Holder shall provide training on an ongoing basis for its employees to maintain and upgrade skills and to prepare promotional opportunities Performance Evaluation: The County may periodically evaluate the performance of the Certificate Holder during the Term of the Certificate, including, without limitation, compliance with Section 5.8. The Certificate Holder shall reasonably cooperate with these evaluations and, subject to the confidentiality provisions of Section 9.1 of this Agreement, supply the County with all relevant information requested. If the County desires to implement a survey of Subscribers in connection with its evaluation of Service, the Certificate Holder shall distribute the County s questionnaire to its Subscribers. Any meetings between the County and the Certificate Holder for purposes of evaluation shall be publicized in advance and open to the public If evaluation indicates the need for modification to the Certificate, the Cable Administrator shall attempt to negotiate the necessary changes. The Cable Administrator shall issue a report to the County Board of the results of the performance evaluation and any recommended changes to the Certificate as negotiated with the Certificate Holder The County Board may hold a public hearing on any performance evaluation reports. Any Certificate modifications shall be approved by the County Board before they become effective Day-to-Day Regulation: Pursuant to Section of the Cable Ordinance and applicable federal regulations, the Administrator (as defined at Section (c) of the Cable Ordinance) shall be responsible for administering and enforcing the terms and conditions of the Certificate and applicable regulations. 3. PROVISION OF CABLE SERVICE 3.1 Service Area: Service Area: The Certificate Holder shall build its System so that it is able to provide service to: (i) all areas located within the County limits as they existed on the effective date of this Certificate; and (ii) any areas which may be acquired by the County or otherwise added to the County s jurisdiction during the Certificate term, or any extension thereof. The Certificate Holder shall build the System so that it can extend service to all residents of the County, in accordance with the provisions of this Certificate and the County Code, unless this requirement is waived in writing by the County No Red-lining: The Certificate Holder shall comply with federal and state law with respect to the extension of Cable Service within the Franchise Area. 9

12 3.2 Availability of Cable Service: The Certificate Holder shall make Cable Service available to all residential dwelling units and may make Cable Service available to businesses within each service area in conformance with Section 3.1, and the Certificate Holder shall not discriminate between or among any individuals in the availability of Cable Service. The Certificate Holder shall be required to connect, at Certificate Holder s standard installation charge, all residential dwelling units that are within one hundred seventy-five (175) feet of trunk or feeder lines not otherwise already served by the Certificate Holder s System. The Certificate Holder shall be allowed to recover, from a Subscriber that requests such connection, actual costs incurred for residential dwelling unit connections that exceed one hundred and seventy-five (175) feet and actual costs incurred to connect any non-residential dwelling unit Subscriber Business Customers: Pursuant to Section 3.2, Cable Services provided to business customers shall be provided pursuant to terms and conditions agreed upon by the Certificate Holder and the business requesting Cable Service Request for Underground Installation: Should a Subscriber wish to have underground service in an area normally provided service via overhead construction, the Subscriber requesting such underground service shall pay the difference between the cost of underground construction and the cost for equivalent overhead installation Cost Estimates: The Certificate Holder agrees to furnish without cost to a Subscriber or group of Subscribers, itemized cost estimates for any construction or installation work which is being planned at the Subscriber s expense. No work shall commence until it is approved in writing by a Subscriber Access to Private Property: The Certificate Holder shall not be required to serve potential Subscribers located in (A) buildings to which the Certificate Holder cannot obtain physical access under reasonable terms and conditions, after good faith negotiations with the owner or manager of the property, provided that Certificate Holder shall submit to the Administrator written notice of such negotiations upon request; (B) developments or buildings subject to exclusive arrangements with other providers,; or (C) developments or buildings that the Certificate Holder is unable to provide Cable Service for technical reasons or which require nonstandard facilities which are not available on a commercially reasonable basis, provided that Certificate Holder shall provide a written description of such technical reasons to the Administrator upon request. 3.3 Cable Service to Existing Buildings: Service to Existing Buildings. The Certificate Holder will continue to provide, at no charge, to the public buildings identified in Exhibit A, the same level of Cable Service as was provided to each such public building by the Certificate Holder on September 1, Certificate Holder will provide such service for the term of this Certificate, including all extensions thereof, but not including any renewal of the Certificate Equipment to Existing Buildings. Certificate Holder shall continue to supply to the County, at no charge, all current converters, digital transport adapters, and other equipment necessary to receive cable service at the public buildings that had been provided at no 10

13 charge to the public buildings identified in Exhibit B prior to the Effective Date. After notice to the Certificate Holder, the County shall have the right to transfer any such equipment from one public building to another at any time. The Certificate Holder shall promptly replace, at no charge, each item of equipment provided pursuant to this Section that malfunctions or ceases to function. Any equipment lost or damaged by the County, shall be replaced only if the County agrees to pay the replacement cost Additional Public Buildings. Certificate Holder shall provide, within one hundred eighty (180) days after receiving a written request from the County and without charge, one service outlet activated for Basic Service to up to five (5) additional public buildings in each County fiscal year. Certificate Holder also shall provide three items of equipment (which shall not include MDU DTAs) necessary to receive such service to each such public building. Exhibit A shall be amended to include each new public building at the time of the County s request. For purposes of this Section 3.3.3, a public building is a County fire station, public school or other public educational facility, police station, public library, access channel facility, or other building used for County governmental purposes as may be designated by the County; provided, however, that if it is necessary to extend Certificate Holder s trunk or feeder lines more than four hundred (400) feet solely to provide service to any such school or public building, the County shall have the option either of paying Certificate Holder s direct costs for such extension in excess of four hundred (400) feet, or of releasing Certificate Holder from the obligation to provide service to such building. Furthermore, Certificate Holder shall be permitted to recover, from any public building owner entitled to free service, the direct cost of installing, when requested to do so, more than one outlet, or concealed inside wiring, or a service outlet requiring more than four hundred (400) feet of drop cable; provided, however, that Certificate Holder shall not charge for the provision of Basic Service to the additional service outlets once installed. The Certificate Holder shall also provide, free of charge, six (6) of each item and service included under this Section within the facility of the CAC. 4. SYSTEM OPERATION 4.1 Compliance with Codes: Use of the Public Rights-of-Way is established by Chapter 22 of the Arlington County Code and the Arlington County Rights-of-Way Regulations for areas under the control of the County, and by the VDOT regulations for those areas under the control of the VDOT. 4.2 Construction Standards: Construction standards are established in the Arlington County Public Works Construction Standards and Specifications, the National Electric Code as referenced in Chapter 7 of the Arlington County Code, the VDOT regulations for those areas under the control of the VDOT, any state rules (such as the Uniform Statewide Building Code), any federal rules (such as those established by the FCC and the Federal Aviation Administration), and the Certificate Holder s construction procedures manual. 11

14 4.2.2 Requirements for the provision by the Certificate Holder to the County of drawings, specifications, scaled engineering maps, engineering plans, and related data are established by the Arlington County Public Works Construction Standards and the Arlington County Rights-of-Way Regulations, and as may be subject to procedures for ensuring confidentiality and security The Arlington County Public Works Construction Standards and Specifications establish the quality of workmanship of contractors and subcontractors. 4.3 Publicizing Propose Construction Work: Notification to the public prior to commencing any proposed construction work is established by the Arlington County Rights-of- Way Regulations. 4.4 Use of Existing Poles: Pole attachments and conduit lease arrangements are regulated at the federal level under Section 224 of the Telecommunications Act of Placement of Facilities: The placement of facilities in the Public Rightsof-Way is governed by state law, including Section (c) of the Virginia Code, requiring the non-discriminatory imposition of conditions for the use of Public Rights-of-Way, Sections and of the Virginia Code, and the Underground Utility Damage Prevention Act, Chapter 10.3 of Title 56 of the Virginia State Code. 4.6 Warning Devices: The use warning devices is governed by applicable regulations, including the VDOT regulations for VDOT controlled areas. 4.7 Trees: The removal, trimming, cutting, and the clearing of trees or other vegetation along the Public Rights-of-Way is established by the Arlington County Public Works Construction Standards and Specifications, the Arlington County Rights-of-Way Regulations, the general rules and regulations of the Commonwealth Transportation Board, and any VDOT regulations as may be applicable for VDOT controlled areas. 4.8 Repair of Damaged Facilities: The repair of damaged facilities is established by the Arlington County Public Works Construction Standards and Specifications, the Arlington County Rights-of-Way Regulations, and Chapter 22 of the Arlington County Code, and the VDOT regulations for areas under the control of the VDOT. 5. SYSTEM FACILITIES 5.1 System Characteristics: The Certificate Holder s Cable System shall meet or exceed the following requirements: The System shall be an active two-way plant utilizing the return bandwidth to permit such services as impulse pay-per-view and other interactive services. The digital offerings shall include standard definition and some high definition Cable Service Compliance with FCC Rules. All maintenance performed on the Cable System by the Certificate Holder shall be in accordance with the FCC s rules and regulations governing the technical performance and operating standards for such a Cable System. 12

15 5.1.3 Continuous 24-Hour Operation. The Cable System shall be capable of continuous twenty-four (24) hour daily operation without severe material degradation of signal except during extremely inclement weather or immediately following extraordinary storms that adversely affect utility services or damage major system components Temperature Specifications. The Cable System shall be capable of operation over an outdoor temperature of -20 degrees F to +120 degrees F and over variations in supply voltages from 105 to 130 volts AC without catastrophic failure or irreversible performance changes. The Cable System shall meet all applicable specifications over an outdoor temperature range or 0 degrees F to 100 degrees F and over variations in supply voltages from 105 to 130 volts AC No interference. The Cable System shall be operated in such a manner as to minimize interference with the reception of off-the-air signals by a Subscriber. The Certificate Holder shall insure that signals carried by the Cable System, or originating outside the Cable System wires, cable, fibers, electronics and facilities, do not ingress or egress into or out of the Cable System in excess of FCC or other standards. In particular, the Certificate Holder shall not operate the Cable System in such a manner as to pose unwarranted interference with emergency radio services, aeronautical navigational frequencies or any airborne navigational reception in normal flight patterns, or any other type of wireless communications, pursuant to FCC regulations No Deterioration to Access Signals. The System shall be so constructed and operated that there is no significant deterioration in the quality of public, educational or governmental Access Channel signals or leased Access Channel signals resulting from the transportation of the video signal, either upstream or downstream, as compared with any other Channel on the Cable System. Deterioration refers to any signal problem, including, but not limited to, ghost images and other interference and distortions Industry-accepted Equipment. The Cable System shall use equipment generally used in high-quality, reliable, modern systems of similar design Standby Power. The Certificate Holder shall provide standby power generating capacity at the headend and at all hubsites. The Certificate Holder shall maintain motorized standby power generators capable of at least twenty-four (24) hours duration at the headend, and battery back-up power capability of at least two (2) hours duration for all Nodes with automatic response systems to alert the headend when commercial power is interrupted. The headend generator shall be tested once per week. The power suppliers serving the distribution plant shall be capable of providing power to the Cable System for not less than two (2) hours according to manufacturer specification in the event of an electrical outage Clear Channels. The Certificate Holder shall comply with all FCC regulations regarding scrambling or other encryption of signals Parental Control. The Certificate Holder shall provide equipment to enable Subscribers to block out audio and video on any undesired Channels on the Cable System. To the extent that the converter or other equipment necessary to enable such blocking is not 13

16 provided as part of a Subscriber s service tier, the Certificate Holder may charge a reasonable fee for such equipment Program Security. The Cable System shall include equipment so that any pay-per-view programming can only be activated by the positive action of a Subscriber Service for Persons with Disabilities. All closed-caption programming retransmitted by the Cable System shall include the closed-caption signal. For hearing impaired Subscribers, the Certificate Holder shall provide information concerning the cost and availability of equipment to facilitate the reception of all Basic Services for the hearing impaired. In addition, the Certificate Holder shall have TDD/TTY (or equivalent) equipment at the company office, and a publicly listed telephone number for such equipment, that will allow hearing impaired customers to contact the company. Upon request, the Certificate Holder shall, consistent with 47 C.F.R and 47 U.S.C. 543(d), provide, for purchase or lease at the lowest uniform price, a remote control device to those Subscribers who are mobility limited, or where a member of the Subscriber s household is mobility limited. 5.2 Interconnection: The Certificate Holder shall design its Cable System so that it may be interconnected with other cable systems or similar communications systems in the Franchise Area. Interconnection of systems may be made by direct cable connection, microwave link, satellite, or other appropriate methods. The Certificate Holder shall cooperate with any interconnection corporation, regional interconnection authority, or state or federal regulatory agency which may be hereafter established for the purpose of regulating, facilitating, financing or otherwise providing for interconnection of communications systems beyond the boundaries of the County The Certificate Holder shall not interfere with the ability of any other cable operator holding a franchise issued by the County, or any other provider of multichannel video programming franchised or licensed by the County under obligations similar to those required of the Certificate Holder (each a Competing Operator ) to obtain the content of any of the programming on the PEG Channels, nor shall the Certificate Holder object to the transmission of the PEG Access Channel signals by any Competing Operator. When not otherwise available to a Competing Operator through direct connection to a PEG origination site, the Certificate Holder shall make the signals of each of the PEG Access Channels available for interconnection by any Competing Operator, subject to the execution of a mutually agreeable interconnection agreement between the Certificate Holder and the Competing Operator, or the renewal of any such existing agreement. The Certificate Holder shall act in good faith during negotiations with a Competing Operator concerning the negotiation or renegotiation of any agreement between a Competing Operator and the Certificate Holder. The Certificate Holder shall provide the County with written evidence of the existence and conduct of such good faith negotiations upon request. In addition, should the Competing Operator and the Certificate Holder be unable to reach agreement on the terms of a new interconnection agreement, the Certificate Holder shall allow the Competing Operator continued access to the programming carried on each of the Access Channels for a reasonable time sufficient to allow the Competing Operator to obtain independent access to the programming, which time shall not exceed six months. 14

17 5.2.3 The Certificate Holder shall cooperate with the County and any Competing Operator with respect to the installation by the County or the Competing Provider of any compatible equipment needed to effect any interconnection between facilities owned by the County and the facilities of such Competing Operator (the Interconnection Equipment ), for the purpose of obtaining access to the PEG Access Channel signals and transporting such signals to the Competing Operator s subscribers by means of its own facilities. Certificate Holder shall cooperate with the County and the Competing Operators to determine the cause of any interruption or degradation of the signal output by the Interconnection Equipment, and the County may request Certificate Holder s assistance, at the County s expense, in troubleshooting any Interconnection Equipment owned by the County No interconnection shall take place without notice to the County, and a demonstration that all signals to be interconnected will comply with applicable FCC technical standards for all classes of signals. 5.3 Emergency Alert System: The Certificate Holder shall comply with the Emergency Alert System ( EAS ) requirements of the FCC in order that emergency messages may be distributed over the System. 5.4 System Tests and Inspections: The Certificate Holder shall perform all tests necessary to demonstrate compliance with the requirements of the Certificate and other performance standards established by law or regulation, and to ensure that the Cable System components are operating as expected for the provision of Cable Service. All tests shall be conducted in accordance with applicable federal laws and rules The Certificate Holder shall conduct tests as follows: acceptance tests on each newly constructed or rebuilt segment prior to Subscriber connection or activation; proof of performance tests on the Cable System in accordance with applicable FCC rules; special tests when Subscriber complaints indicate tests are warranted; and, special tests at the County s request The County may conduct inspections of Subscriber installations, including but not limited to inspections to assess compliance with the Certificate Holder s requirements under the Certificate. Inspection does not relieve the Certificate Holder of its obligation to build in compliance with all provisions of the Certificate and the Arlington County Code. 15

18 5.4.4 A written report of test results will be provided to the County within fourteen (14) days of a written request by the County. In addition, the Certificate Holder shall retain written reports of the results of any tests required by the FCC, and such reports shall be submitted to the Administrator upon the Administrator s written request The Certificate Holder will provide the County with at least two (2) days prior written notice of, and opportunity to observe the FCC proof of performance tests and any special tests required by the County If any Cable Service test indicates that any part or component of the System fails to meet applicable requirements, the Certificate Holder, without requirement of additional notice or request from the County, shall take prompt corrective action. 5.5 Relocation and Moving of Cable System: In the event that a location or a grade, line, or other characteristic of a public right of way that the Certificate Holder is authorized to use or occupy is altered by the County, the Certificate Holder shall relocate or otherwise modify its Cable System to as to conform to the new location of the new grade, line or other right of way characteristic. Certificate Holder may seek compensation for such relocation to the extent permitted by applicable law. 5.6 Cable System Maintenance: Maintenance of the Cable System shall be performed in accordance with the applicable technical performance and operating standards established by FCC rules and regulations. 5.7 Removal at Expiration of Certificate: Subject to the Certificate Holder s right to continue to provide telecommunications services over its system facilities pursuant to 47 U.S.C. 541(b)(3), or any other legal right the Certificate Holder may have to maintain the system facilities within the public rights of way, at the expiration of the term for which this Certificate is granted, or upon the expiration of any renewal or extension period which may be granted, or upon the termination or revocation of this Certificate, the County will have the right to require the Certificate Holder, at its sole expense: (i) to remove all portions of the System from all Public Rights-of-Way within the County; and (ii) to restore affected sites to their original condition. Should the Certificate Holder fail, refuse, or neglect to comply with the County s directive, all portions of the System, or any part thereof, may be removed, altered or relocated by the County at the cost of the Certificate Holder. The County will not be liable to the Certificate Holder for damages resulting from such removal, alteration or relocation. The Cable System shall meet or exceed the applicable technical standards set forth in 47 C.F.R Technical Standards: The Cable System shall meet or exceed the applicable technical standards set forth in 47 C.F.R Leased Access Channels: The Certificate Holder shall provide Leased Access Channels as required by federal law Integration of advancements in technology: It is the responsibility of the Certificate Holder to upgrade the System to provide generally available and commercially reasonable advances in Cable Service, taking into account the needs and interests of the community, economic and financial considerations and the impact on Subscriber rates. The 16

19 Certificate Holder shall install additional Channel capacity as required to accommodate the reasonable demand of Subscribers. 6. PEG AND I-NET SERVICES 6.1 PEG Set Aside In order to ensure universal availability of public, educational and government programming, Franchisee shall initially set aside for PEG use a total of six (6) dedicated standard definition Access Channels (the SD PEG Channels ). The Certificate Holder shall interconnect its Cable System pursuant to Section 5.2 of this Certificate in such a manner as to permit delivery over the Certificate Holder s Cable System of PEG programming No later than six (6) months after the Effective Date, the Certificate Holder shall set aside for PEG use one high definition ( HD ) Access Channel. Further, as of January 1, 2018, the County may request two (2) additional HD channels for PEG use, and such two (2) HD channels will be made available within ninety (90) days of the County s request. In accordance with this schedule for the deployment of a total of three (3) HD Access Channels (the HD PEG Channels ), the Certificate Holder shall carry the programming of the Arlington Virginia Network ( AVN ), the Arlington Public Schools ( APS ) and the CAC on both the respective existing SD PEG Channel managed by each such entity, and on the corresponding new HD PEG Channel. The County shall in its sole discretion determine the order in which each entity shall obtain access to the HD PEG Channel allocated for such entity s use. There shall be no charge to AVN, APS, or the CAC for the use of the HD PEG Channels, or for any modifications required by the Certificate Holder at the headend to carry such Channels on the System. AVN, APS, and the CAC shall bear the cost of producing programming in high definition Notwithstanding Section 6.1.1and Section 6.1.2, after the HD PEG Channels have been made available and activated, AVN and APS shall each surrender the remaining SD PEG Channels under their control, and the Certificate Holder shall regain control of such three (3) SD PEG Channels. Thereafter, the Certificate Holder shall only be required to carry three SD PEG Channels, and three HD PEG Channels, as described in Section County acknowledges that HD programming may require special viewer equipment and subscription to advanced service tiers and that, by agreeing to make PEG channels available in HD format, Certificate Holder shall not be required to provide free HD equipment to customers, or to complimentary municipal and educational accounts as described in Section 3.3 and identified in Exhibit A. Nor shall Certificate Holder be required to modify its equipment or pricing policies in any manner. County acknowledges that not every customer may be able to view HD PEG programming, nor on every TV in the home, and additional costs may be involved in the reception of HD programming Certificate Holder may implement HD carriage of the PEG channels in any manner (including selection of compression, utilization of IP, and other processing characteristics) that produces a signal quality for the consumer 17